No. In the Supreme Court of the United States DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v. RAHINAH IBRAHIM ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI NOEL J. FRANCISCO Solicitor General Counsel of Record JOSEPH H. HUNT Assistant Attorney General JEFFREY B. WALL EDWIN S. KNEEDLER Deputy Solicitors General HASHIM M. MOOPPAN Deputy Assistant Attorney General JONATHAN Y. ELLIS Assistant to the Solicitor General SHARON SWINGLE JOSHUA WALDMAN Attorneys Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 TABLE OF CONTENTS Page Appendix A — Court of appeals en banc opinion (Jan. 2, 2019) ................................................. 1a Appendix B — Court of appeals panel opinion (Aug. 30, 2016) ............................................ 84a Appendix C — District court order setting amount of the fee award (Oct. 9, 2014) ................ 116a Appendix D — District court order granting in part and denying in part plaintiff ’s motion for attorney’s fees and expenses (Apr. 16, 2014) ..............................................126a Appendix E — District court findings of fact, conclusions of law, and order for relief (Jan. 14, 2014) ................................. 169a Appendix F — Statutory provision ..................................... 225a (I) APPENDIX A UNITED STATES COURT OF APPEALS FOR THENINTH CIRCUIT Nos. 14 -16161 and 14-17272 D.C. No. 3:06 -cv-545-WHA DR. RAHINAH IBRAHIM, AN INDIVIDUAL , PLAINTIFF-APPELLANT v. U.S. DEPARTMENT O F HOMELAND SECURITY; TERRORIST SCREENING CENTER; FEDERAL BUREAU OF INVESTIGATION; CRISTOPHER A. WRAY,* IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION; KIRSTJEN NIELSEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, MATTHEW G. WHITAKER, IN H IS OFFICIAL CAPACITY AS ACTING ATTORNEY GENERAL; CHARLES H. KABLE IV, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE TERRORIST SCREENING CENTER, JAY S. TABB, JR., IN HIS OFFICIAL CAP ACITY AS EXECUTIVE ASSISTANT DIRECTOR OF THE FBI’S NATIONAL SECURITY BRANCH; NATIONAL COUNTERTERRORISM CENTER; RUSSELL “RUSS” TRAVERS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL COUNTERTERRORISM CENTER; DEPARTMENT OF STATE; MICHAEL R. POMPEO, IN HIS OFFICIAL CAP ACITY AS SECRETARY OF STATE; UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES * Current cabinet members and other federal officials have been substituted for their predecessors pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure. (1a) 2a Argued and SubmittedEn Banc Mar. 20, 2018 San Francisco, California Filed: Jan. 2, 2019 OPINION Appeal from the United States District Court for the Northern District of California William Alsup, DistrictJudge , Presiding Before: SIDNEY R. THOMAS, Chief Judge, and M. MAR- GARET MCKEOWN, KIM MCLANE WARDLAW, WILLIAM A. FLETCHER, MARSHA S. BERZON, CONSUELO M. CALLA- HAN, MILAN D. SMITH, JR., N. RANDY SMITH, MORGAN CHRISTEN, JACQUELINE H. NGUYEN, and PAUL J. WAT- FORD, Circuit Judges. WARDLAW, Circuit Judge: This appeal arises out of Dr. Rahinah Ibrahim’s 2005 detention at the San Francisco International Airport (SFO) while en route to Malaysia with a stopover in Ha- waii for a Stanford University conference. U.S. au- thoritiesdetained Dr.Ibrahim because her name was on the Transportation Security Administration’s (TSA) “No Fly” list (the No Fly list). After almost a decade of vigorous and fiercely contested litigation against our stateand federal governments and their officials, incl ud- ing two appeals to our court and a weeklong trial, Dr. Ibrahim won a complete victory. In 2014, the federal government at last conceded that she poses no threat to oursafety or nationalsecurity, hasnever posed a threat to national security, and shoul d never have been placed on the No Fly list. Through Dr. Ibrahim’s persistent 3a discoveryefforts, which were met with stubborn opposi- tion at every turn, she learned that she had been nomi- nated to the No Fly list and the Interagency Border In- spection System (IBIS), which are stored within the na- tional Terrorist Screening Database (TSDB) —the fed- eral government’s centralized watchlist of known and suspected terrorists —and which serve as a basis for se- lection for other counterterrorism sub -lists. From there, a Federal Bureau of Investigation (FBI) special agentso misread a nomination form that he accidentally nominated Dr. Ibrahim to the No Fly list, intending to dothe opposite, as the No Fly list is supposed to be com- prised of individuals who pose a threat t o civil aviation. ButDr. Ibrahim did not accomplish this litigation vic- tory on her own. Indeed, since she was finally allowed to travel to Malaysia in 2005, the United States govern- ment has never allowed her to return to the United States, not even to attend the trial that cleared her name. Throughout this hard -fought litigation, thecivil rights law firm McManis Faulkner has represented her interests without pay, but with the understanding that if it prevailed on her behalf, it could recover reasonabl e attorneys’ fees and expenses, in addition to costs, pur- suant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The firm filed a motion for an award of attorneys’ fees and expenses, supported by documentary evidence and declarations, which t he government opposed. The motion was met with the “compliments” of the district court and drastic reductions in the claimed fees, by al- most ninety percent. In reducing the claimed legal fees,the district court misapplied Commissioner,I.N.S. 4a v. Jean , 4 96 U.S. 154 (1990), by taking a piecemeal ap- proach to determining whether the government’s posi- tion was “substantially justified,” and so disallowing fees forparticular stages ofproceedings rather than ex- amining the record as a whole and making a single find- ing. The district court further erred by treating alter- nativeclaims or theories for the same relief Dr. Ibrahim achieved—which the court, therefore, did not reach —as unsuccessful,and reducing fees for work pursuing those claims, contrary to Hensley v. Eckerhart , 461 U.S. 424 (1983). These errors were compounded by the now - withdrawnthree -judgepanel decision, which misapplied the Hensley standard for determining “relatedness,” i.e., whether the claims arose from a “common course of conduct,” to wronglyconclude that because the claims in the alternative were “mutually exclusive,” they were not related. In point of fact, all of the legal theories pur- sued on behalf of Dr. Ibrahim challenged the same and onlygovernment action at the heart of this laws uit: the government’s placement of her name on the No Fly list without anybasis for doing so. Finally, ourprior prec- edent, which we now reaffirm, requires that when a dis- trict court analyzes whether the government acted in bad faith, it must consider t he totality of the circum- stances, including both the underlying agency action and the litigation in defense of that action. We reheard this appeal en banc to clarify the stand- ards applicable to awards of attorneys’ fees under the EAJA. Wenow reverse, v acate the award of attorneys’ 5a fees, and remand with instructions to recalculate fees consistent with this opinion. 1 I. A. Dr. Ibrahim Dr. Ibrahim is a Muslim woman, scholar, wife, and motherof four children. Shelived in the United States for thirteen years pursuing undergraduate and post - graduate studies. Here’s what happened to Dr. Ibra- him,as the events that ultimately excluded her from this country unraveled: In early January 2005, Dr. Ibrahim planned to fly from San Francisco to Hawaii and then to Los Angeles andon to Kuala Lumpur. Sheintended to attend a con- ference in Hawaii sponsored by Stanford University fromJanuary 3 to January 6, at which she would present the results of her doctoral research. She was then workingtoward a Ph.D. in con structionengineering and management at Stanford University under an F -1 stu- dent visa. On January 2, 2005, Dr. Ibrahim arrived at SFO with her daughter, Rafeah, then fourteen. At the time, Dr. Ibrahim was still recovering from a hysterec- tomy performed th ree months earlier and required wheelchair assistance. When Dr. Ibrahim arrived at the United Airlines counter,the airlinestaff discovered her name on theNo Fly list and called the police. Dr. Ibrahim was hand- cuffed and arrested. She was escorted to a police car (while handcuffed) and transported to a holding cell by 1 For ease of reading, attached as Appendix A is a glossary of the numerous acronyms refe renced throughout this opinion. 6a male police officers, where she was searched for weap- onsand held for approximately two hours. Paramedics were called to administer medication related to her sur- gery. No one explained to Dr. Ibrahim the reasons for her arrest and detention. Eventually,she was released and an aviation security inspector with the Department of Homeland Security (DHS) informed Dr. Ibrahim that her name had been removed from the No Fly list. The police were satis- fied that there were insufficient grounds for making a criminal complaint against her. Dr. Ibrahim was told that she could fly to Hawaii the next day. The next day she returned to SFO where an unspec- ifiedperson told her that she was again —or still—onthe No Fly list. She was nonetheless allowed to fly, but wasissued an unusual red boarding pass with the letters “SSSS,” meaning Secondary Security Screening Selec- tion,printed on it. Dr.Ibrahim flew to Hawaii and pre- sented herdoctoral findin gs atthe Stanford conference. From there, she flew to Los Angeles and then on to Kuala Lumpur. Two months later, on March 10, 2005, Dr. Ibrahim was scheduled to return to Stanford University to com- pleteher work on her Ph.D. and to meet with an individ- ual who was one of her Stanford dissertation advisors and also her friend, Professor Boyd Paulson, who was very ill.